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The following is the text spoken by OUT-LAW journalist Matthew Magee.
One of the Saints players gets sent off for a particularly nasty offence, are we going to get pictures of that? Probably not because they are being taken by the club photographer who is going to be thinking well that is not going to be such good PR for us, I won't send that picture out.
Hello and welcome to OUT‑LAW Radio, the talking outpost of the OUT‑LAW empire where we discuss the pressing technology law issues of the day with the finest experts around. Remember, you can read breaking news at OUT LAW.COM, where we keep you bang up to date with news, snippets and insight into what matters in the world of technology law.
It is 12 August 2010, my name is Matthew Magee and this week we discuss a football club's controversial ban on press photographers and what it reveals about your pitch side snaps.
Shockwaves reverberated around the tightly knit worlds of football and sports journalism this week when Southampton Football Club controversially decided to ban press photographers from games.
But with billions of pounds at stake every time a new English football season starts, perhaps our only surprise at Southampton's move to control the media should have been that it had not happened before.
Football reporters are often accused of pandering to the PR demands of clubs and players in a bid to gain access and exclusives, but one area has always been sacrosanct: the game itself.
A sports editor may well agree to a soft focus feature on one player at home with his lovely wife in order to get the inside track on another's transfer deal, but when it comes to reporting what happens in the 90 minutes of actual football, no quarter is asked or given. Editorial integrity reigns and an independent account, in words and pictures, will be given until now.
Southampton has announced that, in its words 'to protect the club's commercial revenues', it will not issue press passes to photographers, and will supply for a fee images from its own photographer. Opposition teams would only be able to bring one photographer.
Can they do this? Kim Walker, a specialist in intellectual property law at Pinsent Masons, the law firm behind OUT‑LAW, says that it's the club's right, and it's relatively easily done.
Kim Walker: It is private property which a football ground would tend to be and people pay for admission by buying a ticket then the way that clubs control the use of cameras and so on in the ground is by making admission such as the terms and conditions which prevent and prohibit the use of cameras. There has been one or two similar arguments between particular newspapers and particulars clubs in the past where perhaps a club has not been terribly happy about the way it has been reported and it has banned particular photographs but I think blanket bans of this kind are fairly unusual.
Newspapers have reacted with predictable anger, and have boycotted the arrangement. Some have relied on cartoonists, and The Sun has even produced what it called 'the most biased match report in history', a report which did not even mention Southampton or any of its players by name.
AFC Bournemouth played Southampton earlier this week in the Carling Cup and are due back there in the league later this year. Bournemouth Echo Sports Editor Neil Meldrum penned a spirited attack on the policy in this week's paper.
Meldrum told us that papers are angry because the Southampton proposal takes editorial control out of their hands.
Neil Meldrum: From my point of view obviously speaking from an editorial point of view it is loss of control, but it is also denying your readers the chance to see people that they watch play football in print. That is the thing that got to me and that is the thing that has got to most of the journalist really. It is denying the readership what they pay to see in the newspaper. Commercially I suppose they are thinking why should we pay £150 for nine pictures from a game that probably will not even feature our players. You can imagine it from our point of view. Bournemouth go to St. Mary’s on Tuesday night. One of the Saints players gets sent for a particularly nasty offence, are we going to get pictures of that? Probably not because they are being taken by the club photographer who is going to be thinking well that is not going to be such good PR for us, I won't send that picture out.
His paper had another novel solution, but Meldrum is not sure that Southampton will win its battle.
Neil Meldrum: What we did in Wednesday’s paper following the Carling Cup game is we used pictures from 23 years ago, the last time the two clubs played each other, some black and white stills that we had from that game. Well The Sun has taken probably the biggest stance against the club. They are actually refusing to print the words Southampton in their newspaper. They have been using the opposition and South Coast club to refer to Saints. You do not upset The Sun and you do not upset the national press. It is one of the laws almost of football.
Stunts like The Sun's and the Bournemouth Echo's are inventive and entertaining, but probably cannot go on forever. So could papers start using photographs taken by people in the crowd? Walkers says not, but that the penalties for doing so may not be massive.
Kim Walker: Well if the spectator having bought a ticket then took a photograph and gave it to the press or sold it to the press then that person would be in breach of contract because he would be in breach of the terms of admission to the ground which he accepts when he buys the ticket. If the newspaper having not been able to get a press photographer in went along to a spectator and said give us one of the photographs you have taken, then the newspaper would probably be inducing that individual to breach of contract which is a tort on a part of the of the newspaper. Well it would be the usual remedies for breach of contract. In other words damages, so the club would get compensation if it wanted. It probably would not be a huge amount, but a Court would try and assess what the loss of the football club was as a result of that photograph being taken.
If this was all there was to it, perhaps some campaigning paper would take the legal hit, publish fan pictures to make a point and pay Southampton the Court ordered fee.
But it turns out there is much more to it than that. The small print of most football clubs ground regulations contains quite a bombshell, for newspapers and fans alike.
"No person may bring into the ground or use within the ground any equipment, which is capable of recording or transmitting (by digital or other means) any audio, visual or audio visual material or any information or data in relation to the match or the ground," most clubs' regulations say. "Copyright and any unauthorised recording or transmission is assigned to the club."
Southampton Football Club confirmed to OUT‑LAW that fans are banned from taking pictures at the ground and that copyright and any pictures that are taken belongs to it. So if you take a picture at a football ground the copyright belongs to the club that owns the ground.
Walker says this considerably ups the stakes for fans and for papers.
Kim Walker: The Copyright Act allows a person by contract effectively to agree that any copyright work such as photographs which have not even yet come into existence, to agree that the first owner of the copyright will be somebody else. Well it means that the club has a course of action against the newspaper and not just the spectator because publishing a photograph without permission of the copyright owner is an infringement of copyright and can be stopped and the newspaper would be doing it without the permission of the club that owned the copyright in the photograph.
If action is taken against the club, the stakes are high.
Kim Walker: The Copyright Act allows for additional damages to be imposed by the Court in the case of an infringement of copyright which the Court regards as flagrant. So, if it is pretty obvious that the newspaper knew that it did not have permission to do it, it might even have been warned by the club and that is what clubs would tend to do if they knew it was going to be published. They would say if you publish we would regard your infringement as flagrant and the Court would then have the ability under the Copyright Act not just to require the newspaper to pay what it should have paid if it had gone off and got a copyright licence from the club, but also to impose additional damages as a kind of punishment for the flagrancy of the copyright infringement.
It is very unlikely that many fans are even aware that the copyright in their pictures belongs to someone else, but the transfer of copyright is perfectly legal.
There is a concept of 'fair dealing' which exempts usually infringing activities from copyright law in certain circumstances. Walker says, though, that it is no help here.
Kim Walker: For copyright there are fair dealing exceptions. So, for public policy reasons it is possible for example for a newspaper to use extracts from other people’s copyright work as long as they use them fairly, in other words they do not use too much and they use it for the purpose of reporting current events, but the problem the newspaper would have is that that exception does not apply to photographs and so they cannot wriggle out of the copyright infringement by claiming fair dealing.
Southampton's actions are being watched very closely by other clubs. OUT‑LAW understands that Southampton's aim is to create a market for picture rights that will divert money to clubs in the same way that broadcast monopolies result in hundreds of millions of pounds a year flowing to football clubs.
It sees its players playing on its ground as an intellectual property asset that should be exploited by it, not by photo agencies who get free access to the game and earn thousands of pounds via the photos they take.
The mainstream press seem determined to break Southampton's resolve, and what is unclear is whether the death this week of Southampton owner Markus Liebherr will have any impact on this policy.
But whatever the outcome of the club's battles with the back pages, the twin restrictions of contract and copyright laws should keep rogue Southampton pictures out of the papers for as long as the club’s nerve holds.
That is all we have time for this week, thanks for listening. Why not get in touch with OUT‑LAW Radio? Do you know of a technology law story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT‑LAW Radio was produced and presented by Matthew Magee for international law firm Pinsent Masons.